The petitioner, a member of the Sex Offender
Notification Review Board, a state appointed position, requests an advisory
opinion as to whether she may continue to serve on the Sex Offender
Notification Review Board, while simultaneously providing counseling services
to private clients.

RESPONSE

It is the opinion of the Rhode Island Ethics
Commission that the petitioner, a member of the Sex Offender Notification
Review Board, a state appointed position, may continue to serve on the Sex
Offender Notification Review Board, while simultaneously providing counseling
services to private clients, including submitting progress reports to the
Superior Court on their behalf, provided that: (1) she recuses from
participating in any matter involving her clients if they should appear before
her board; (2) she does not disclose any confidential information acquired by
reason of her public position; (3) she does not accept as a new client any
person who has appeared before her on the Review Board; and (4) she does not
act as a witness or represent herself or any of her clients before the Review
Board.

The petitioner advises that she is a licensed
Marriage and Family Therapist in Rhode Island and Massachusetts. She informs
that for the last six (6) years she has been employed by Ocean State
Psychotherapy, Inc. located in North Kingstown, Rhode Island. She advises that
approximately 70% of her practice consists of adolescents, families, couples
and young children who need specialized services. More specifically, however,
her specialty for the past thirteen (13) years has been to provide treatment to
adolescent and adult sexual offenders.

Because of her work in the area of adolescent and
adult sexual offender treatment, the petitioner advises that approximately one
year ago, she was appointed to the Sex Offender Notification Review Board
(“Review Board”). The Review Board determines the level of risk that a sexual
offender poses to the community and assists the courts in determining if such
person is a sexually violent predator. See R.I. Gen. Laws § 11-37.1-6. Pursuant
to statute, a sexual offender has a right to appeal a decision of the Review
Board to the Rhode Island Superior Court (“Court”). See R.I. Gen. Laws
§ 11-37.1-13. The petitioner informs that one member of the Review Board must
be an expert “in the field of behavior and treatment of sexual offenders by
reason of training and experience.” R.I. Gen. Laws § 11-37.1-6. The petitioner
states that she fulfills this statutory requirement.

The petitioner advises that there are times when
the Review Board is required to evaluate a case involving one of her private
clients. The petitioner represents that when this occurs, she recuses herself
from any participation in the matter. The petitioner states, however, that on
a few occasions when a client has appealed a decision by the Review Board, she
has been asked, either by her client or their attorney, to write an updated
status report to the Court regarding the client’s progress in treatment. The
petitioner represents that because she has a professional responsibility to
report her impressions to the Court regarding her client, sometimes her
clinical impressions differ from the recommendation made by the Review Board.
The petitioner states that the Superior Court Magistrate assigned to hear
appeals from the Review Board has articulated his concern regarding the
petitioner’s participation on the Review Board and her participation in the
appeal process before the Court.

Based upon the foregoing, the petitioner seeks
guidance from the Commission as to whether she may continue to serve on the
Review Board, while simultaneously providing counseling services to private
clients, including submitting progress reports to the Court on their behalf,
given her representation that she will recuse from participating in any matter
involving her clients if they should appear before her board.

The Code of Ethics provides that the petitioner
shall not have any interest, financial or otherwise, direct or indirect, or
engage in any employment or transaction which is in substantial conflict with
the proper discharge of her duties in the public interest. See R.I.
Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the
petitioner has reason to believe or expect that she or any family member or
business associate, or any business by which she is employed will derive a
direct monetary gain or suffer a direct monetary loss by reason of her official
activity. See R.I. Gen. Laws § 36-14-7(a). Additionally, the Code
prohibits the petitioner from accepting other employment which will either
impair her independence of judgment as to official duties or employment, or
that will require or induce her to disclose confidential information acquired
by her in the course of and by reason of her official duties. See R.I.
Gen. Laws § 36-14-5(b). Further, pursuant to R.I. Gen. Laws § 36-14-5(e)(1)
and (2), the petitioner may not represent herself or any other person before
any state or municipal agency of which she is a member or by which she is
employed. Finally, the petitioner may not act as an expert witness before her
agency with respect to any matter the agency’s disposition of which will, or
can reasonably be expected to, directly result in an economic benefit or
detriment to the petitioner, a family member, business associate or any
business by which she is employed or represents. See R.I. Gen. Laws §
36-14-5(e)(3).

In analogous advisory opinions, the Commission has
concluded that parole and probation counselors employed by the Department of
Corrections (“DOC”) could accept private employment as group counselors for
individuals on parole and probation, provided that they do not participate in
activities in their private employment where their public clients are
involved. See A.O. 2001-77 (opining that a parole and probation
counselor employed by the DOC may accept private employment facilitating
domestic violence group sessions at the CODAC Treatment Centers, provided that
she did not participate in activities at CODAC, where individuals on her DOC
probation caseload were involved). Seealso A.O. 97-45 (opining
that a DOC Community Program Counselor may accept private employment as a group
counselor for men who are on probation, parole, and electronic monitoring
provided that she does not participate in activities in her private employment
where her inmates are involved and that she does not accept private clients who
have a reasonable likelihood of having professional contact with her in her
public capacity); A.O. 96-72 (finding that a DOC Probation/Parole Officer may
accept private employment as a counselor at Kent House provided that he does
not participate in activities at the Kent House where his public clients are
involved).

Similarly, in the instant matter, the petitioner
represents that she will recuse from participating in any matter when her
clients appear before the Review Board. The petitioner further represents that
she will not accept as a new client any person who has appeared before her on
the Review Board. By such representations, the petitioner is ensuring that her
official duties in the public interest and her professional responsibility to
her private clients will never intersect.

Accordingly, the Commission opines that the
petitioner may continue to serve on the Sex Offender Notification Review Board,
while simultaneously providing counseling services to private clients,
including submitting progress reports to the Superior Court on their behalf, provided
that: (1) she recuses from participating in any matter involving her clients
if they should appear before her board; (2) she does not disclose any
confidential information acquired by reason of her public position; (3) she
does not accept as a new client any person who has appeared before her on the
Review Board; and (4) she does not act as a witness or represent herself or any
of her clients before the Review Board. Notice of recusal should be filed with
the Commission in accordance with R.I. Gen. Laws § 36-14-6. Finally, the
petitioner is cautioned that this opinion applies only to the Code of Ethics
and does not, and cannot, address whether any other statute, regulation, policy
or code of professional conduct prohibits such activity.